Mohan Lal vs Union Public Service Commission & ...
2016 Latest Caselaw 5987 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Judgment Dated: 15th September, 2016.

+  W.P.(C) 6678/2016 and C.M.No.27324/2016
   MOHAN LAL                                        ..... Petitioner
                     Through: Mr.Navin Sharma, Mr.Ajayveer
                               Singh Jain, Ms.Divya Garg,
                               Mr.Varun Rathi and Mr.Syed Aatif,
                               Advocates.
              versus
   UNION PUBLIC SERVICE COMMISSION & ORS .... Respondents

Through: Mr.Naresh Kaushik and Ms.Kritika Sharma, Advocates for R1/UPSC.

Mr.Kumar Rakesh Singh, Advocate for EDMC.

Mr.Anupam Srivastava, ASC for GNCTD/R3 & R4.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE I.S.MEHTA

G.S.SISTANI, J (ORAL)

1. Challenge in this writ petition is to the order dated 9th May, 2016 passed by the Central Administrative Tribunal (hereinafter the „Tribunal‟) whereby the O.A. filed by the petitioner herein has been dismissed.

2. Brief facts relevant for deciding the writ petition are that the petitioner applied for the post of „Assistant Education Officer‟ (AEO) which was advertised by the UPSC in the year 2010. The petitioner was not called for the interview which led to his sending a protest letter on 24th March, 2011. Based on the said protest letter, in which he pointed out that he was a SC candidate and was also entitled to age relaxation, he was then called for the

interview. However, the respondent No.5 herein was selected, being an OBC candidate. Thereafter, the petitioner made applications under the Right to Information Act on 7th July, 2011. Based on the documents received by him, he made a complaint to the UPSC on 6th September, 2011 and also on 31st October, 2011. Having inspected the file on 5th December, 2011, the petitioner learnt that respondent No.5 was ineligible and had been appointed despite his not having the necessary experience as required based on the advertisement of the UPSC. The petitioner made another complaint to UPSC on 13th December, 2011. Thereafter, he made complaint to the respondent No. 2 Commissioner, MCD.

3. The grievance of the petitioner was two-fold. Firstly, the UPSC had connived with respondent No.4 and they had not applied the advertisement in letter and spirit and they appointed a person who was ineligible. The second grievance of the petitioner was that despite the respondent No.5 being ineligible and an inquiry having been conducted by the Directorate of Education, the respondent No.5 continued to remain employed, while the petitioner has been deprived of his job. According to the petitioner, the UPSC has not taken into account the documents relied upon by the respondent No.5 which according to the petitioner are forged and fabricated. Accordingly, the respondent No.5 would not have been granted employment and rather the petitioner would have succeeded.

4. The petition is opposed by counsel for the respondents. Mr.Naresh Kaushik, learned counsel for the UPSC, submits that the allegations made by the petitioner are baseless. The O.A. was rightly dismissed by the Tribunal and there is not even an iota of truth in any of the allegations made by the petitioner.

5. Mr.Naresh Kaushik, learned counsel for the UPSC, further submits that the respondent No.5 meets the eligibility criteria and his name was thus cleared by the UPSC. It is contended that all the allegations have been made by the petitioner post the recommendation of the respondent No.5 by the UPSC. It is further submitted that the UPSC made its recommendation based on the certificates submitted and in case there was any forgery in the certificates it was for the employer to consider the authenticity of the same. Mr.Naresh Kaushik has drawn our attention to the counter affidavit filed by the UPSC before the Tribunal wherein the entire position of the UPSC has been explained.

6. Mr.Srivastava, learned counsel appearing for respondents No.3 & 4 submits that based on the complaints made by the petitioner, an inquiry was conducted into the allegations and an inquiry report was submitted wherein the submission made with regard to forgery and fabrication of certificates was not borne out.

7. We have heard learned counsel for the parties and with the consent of the parties, we dispose of the writ petition at the admission stage itself.

8. The petitioner had approached the Tribunal seeking the following reliefs:-

"1) An appropriate direction to the respondent No.1 & 2 to terminate the services of respondent No.5 with immediate effect being him a person of dublous character and doubtful integrity clearly unbecoming of a Govt. Servant.

2). Allow the applicant to join against the Respondent No.5 or renotify the post of AEO (Phy) with respondent No.2 to be filled up fairly afresh.

3). Respondent no.3 & 4 be also directed to cancel the lien granted to respondent no.5 and issue call back notice

to respondent No.5 & further to initiate disciplinary proceedings against respondent no.5 as per conduct Rules since the respondent no.5 has not only played gimmics tricks but also has kept the Directorate of Education in dark while seeking appointment as PET on the basis of fraudulently obtained M.P. Ed. Degree together with other repeated committed misconducts there after.

4. Declare the decision of respondent no.1 as illegal in considering a joint experience of respondent no.5 as total of 7 years experience as the same is not a condition of Recruitment Rules and the same being a closed room decision is totally illegal and no acceptable in the eyes of law since the same was not communicated even to the candidates under zone of consideration for the said post.

5. Such other/further order this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents, in the interest of justice."

9. Mr.Navin Sharma, learned counsel for the petitioner has placed strong reliance on the advertisement published by the UPSC. Since the bone of contention between the parties is the educational qualifications and experience as per the advertisement, we deem it appropriate to reproduce the same. The same reads as under:

"A. EDUCATIONAL Master‟s degree in physical education from a recognized University or equivalent.

OR

Master‟s degree of a recognized University or equivalent and degree in physical education from a recognized University or equivalent and;

B. EXPERIENCE:

Seven years‟ experience in imparting training in physical education in educational Institute/Youth Welfare camps with two years‟ administrative experience".

10. Mr.Sharma has contended before us that as per the advertisement, a candidate was required to have a total seven years experience in imparting training in physical education in any educational institute/youth welfare camps. This seven years experience include two years administrative experience. Mr.Sharma has contended that the UPSC, while applying the criteria of experience, has considered the training and experience jointly which was impermissible. The UPSC in its counter affidavit before the Tribunal has explained as to how the experience certificates were considered. The relevant part of the counter affidavit, which also deals with the experience of respondent No.5, has been explained, which reads as under:-

"Modalities Adopted:

While doing scrutiny of this recruitment case, the following modalities were adopted:

(i) Experience on part time/honorary/daily wages/free lance/self employment, apprenticeship, trainee, guest faculty, on commission basis etc. has not been considered as usual.

(ii) Experience as House master has also not been considered relevant towards administrative experience.

(iii) The Essential Qualification of experience in this case is read as "seven years" experience in imparting training in

physical education in educational Institute/Youth Welfare camps with two years administrative experience".

(iv) From the experience certificates submitted by the candidates it was seen that it was difficult to segregate the „training part‟ and „administrative part‟. Hence the joint experience in both the fields was considered towards total of requisite seven years experience.

(v) Experience has been counted/considered only for the period for which the valid Experience Certificates are available with applications.

(c) That the candidature of Applicant viz. Shri Mohan Lal (Roll No.74), in the initial scrutiny, was rejected under „overage‟ category as his date of birth was 15.05.1969 and the maximum age was 40 years as on the closing date, i.e. 12.08.2010. However, thereafter on consideration of his representation dated nil (which was received in the Commission on 24.03.2011) in which he informed that he has more than 13 years experience in Directorate of Education. GNCT of Delhi and also that he is a government servant and also attached a certificate from his present employer, i.e., Directorate of Education, GNCT of Delhi support of his claim, the Commission decided to call him also for the interview alongwith other candidates. In his original application, he did not claim any age relaxation and put "2" both in reply of the column in the application form, viz. "Is any age relaxation being claimed?" which implies "No" and also in reply of "Whether Central/U.T. Government servant" which also means "No".

(d) That Scrutiny of this case was done duly following all the prescribed recruitment process and instructions. Initially 12 candidates, who were shortlisted to be called for interview. However, later on SH. Mohan Lal (R.No.74) was also included in the called candidates‟ list after communication between the

answering respondent and applicant herein. Thus finally a total of 13 candidates were called for interview on 08.04.2011. Recommendation Letter for 01 candidate (Shri Surender Kumar Bahndoria, Roll No.81, Marks obtained -70, OBC) was issued on 20.04.2011.

(e) It is submitted that in the interview, the Respondent No.5 (Shri Surender Kumar Bhandoria (Roll No.81) who secured 70 marks was recommended against the one post of Assistant Education Officer (Physical), MCD, Whereas, the Applicant herein viz. Shri Mohan Lal got only 42 marks and consequently could not establish his merit for recommendation for the post.

(f) It is also submitted that (i) Experience Certificate dated 29.07.2010 submitted by Respondent No.5; issued by the Govt. Boys Sr. Sec. School, Bindapur, New Delhi, which inter-alia states that he joined Dte. of Education on 25.02.1997 and the duties and responsibility entrusted to him were organisation and administration of all types of sports, recreational activities, drills and displays, Yuva training programmes, Physical Education lessons plans for 11th and 12th class students. He was also a resource person in Delhi Administrative seminar for physical education teacher. The total period of experience (including administrative experience) of this certificate comes to about 13 years and 5 months, (ii) Experience Certificate dated 11.04.2005 issues by the Mother‟s International School, Sri Aurobindo Ashram, Delhi Branch, indicating his experience of about 02 years and 04 months, inter-alia states that Shri Bhandoria has worked as Physical Education Teacher for that school during November, 1994 to March, 1997. During this period he organized games and sports and also gave coaching in Taekwondo to the students. Apart from above, he also possesses M.Phil and Ph.D in Physical Education. According to the certificate issued by Delhi Taekwondon Association, the candidate has successfully organized self defence camps with

Education Department and Delhi Police. He ahs also organized Korean Taekwondo team demonstration at IP Stadium. He was appointed observer by CBSE for CBSE National Taekwondo Championship, 2009. It is thus clear that the candidate has sufficient administrative experience in the field of organizing sports events. He also took part in the sports administration course of the Olympic Solidarity Sports Administration Programme in December, 2000 organised by the International Olympic Committee (I.O.C.)".

11. Another submission, which has been made by Mr.Sharma, counsel for the petitioner, is that the UPSC did not act in a fair and just manner and it was only upon receipt of the protest letter that the petitioner was called for the interview. Another ground raised by the petitioner is that the Tribunal has wrongly dismissed the O.A. Mr.Navin Sharma, learned counsel for the petitioner contends that once the Tribunal had reached the conclusion that the O.A. was in the form of Public Interest Litigation, the Tribunal ought to have transferred the O.A to the High Court to be heard and disposed of as a PIL.

12. Mr.Naresh Kaushik, counsel for the UPSC has explained that the petitioner did not give complete particulars in the application form and in reply to the columns "Is any age relaxation being claimed?" and also in reply to the column "Whether Central/UT Government servants", the petitioner has filled in as „No‟. Thus, the UPSC cannot be faulted with in not calling him for the interview when the petitioner was in fact entitled to age relaxation on account of being a SC candidate.

13. In our view this complaint of the petitioner is unfounded, as he himself was to be blamed for not seeking age relaxation and not bringing to

the notice of the UPSC by filling the concerned columns correctly.

14. The second and prime grievance of the petitioner is as to whether the UPSC who has adopted a procedure of including the training part and the administrative part separately, we find that this arguments is also without any force; firstly for the reason that it was for the UPSC to adopt any method as long as the same did not change the basic criteria of the advertisement and secondly, for the reason that the Directorate of Education allows this procedure having been adopted. We find that the selected candidate had the experience in imparting training in physical education as well as two years administrative experience which is amply clear on reading of para (f) which has been extracted from the counter affidavit of UPSC filed before the Tribunal.

15. Another aspect which cannot be lost track of is that between respondent No.5 and the petitioner, there were five other candidates and thus, the petitioner could not have succeeded in any case. Learned counsel for the petitioner has strongly urged before this Court that respondent No.5 had produced forged and fabricated certificates which were entertained by the UPSC. This argument has also to be rejected for the reason that the inquiry report which has been placed on record does not show that the respondent No.5 had submitted any forged or fabricated certificates. The conclusion of the inquiry report reads as under:-

"Conclusion:-

It seems that Shri S.K.Bhandoria attended the classes in Great Mission Teachers Training Institute during his study leave from 01/03/2008 to 28/02/2009 and even after availing the Study Leave after joining his duties in the BSSS Bindpur w.e.f. 28/02/2009 till 10/04/2010 as per experience certificate

attached (page No.7) That Shri S.K.Bhandoria in utter violation of rules accepted providing guidance/teaching in Physical Education in Great Mission Teachers Training Institute during leave period for study purpose and after leave also without prior permission for intimation to the authorities of Directorate of Education of Delhi.

Hence committed gross misconduct and has violated rule 15 of CCS (conduct) rules besides rule 113 of DSEAR 1973 in which it is stated that-

113. private tuition:-

No teachers shall undertake Private tuitions or Private employment or otherwise engage himself in any business."

16. We may notice that the inquiry was conducted by two Principals of Kendriya Vidyalaya. At this stage, Mr.Sharma, counsel for the petitioner, submits that the respondents No.3 and 4 had not taken any action against respondent No.5 based on the inquiry report.

17. Mr.Srivastava explains that no such relief was claimed by the petitioner either before the Tribunal nor is claimed before this Court and that aspect would remain between the respondent No.5 and respondents No.3 and 4.

18. As far as the plea of Mr.Sharma regarding the Tribunal not placing the matter before the High Court once having held that it was a Public Interest Litigation, this ground is also not acceptable as even prior to the hearing of this writ petition, we had asked Mr.Sharma as to whether this writ petition was in the form of a PIL, to which his answer was in the negative, as it was explained that the petitioner was concerned with his own candidature. Thus, if the petitioner himself did not claim the writ petition to

be a PIL, there was no reason for the Tribunal to have transferred the matter to the High Court. At this stage, we may notice that while dismissing the O.A., the Tribunal had imposed costs of Rs. 50,000/-. Prior to hearing of this writ petition, we had requested the petitioner to deposit the costs in this Court which have been deposited.

19. We find no grounds to entertain this writ petition as the same is misconceived and is hereby dismissed. Since the Tribunal has already imposed costs, although substantial Court time has been spent in hearing this matter, we refrain ourselves from imposing further costs in this matter. The costs already deposited in this Court shall be released in favour of the respondents, as directed by the Tribunal.

G.S.SISTANI (JUDGE)

I.S.MEHTA (JUDGE) SEPTEMBER 15, 2016 „dc‟